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FreedomWorks Takes on the NSA

Today, FreedomWorks president Matt Kibbe joined Ken Cuccinelli and Senator Rand Paul in filing an historic class action lawsuit in defense of the Fourth Amendment. The suit's targets include high ranking officials in the National Security Agency (NSA) and the Department of Defense who have been instrumental in overseeing the agency’s collection of massive amounts of telephone data known as the Mass Associational Tracking Program (MATP).

Speaking at a press conference, Mr. Cuccinelli said that the object of the suit is an injunction to prevent further collection of telephone data, and the removal of existing records from the NSA’s databases.

This suit is an important shot across the bow not just for those of us in the freedom movement, but also for anyone who cares about their privacy and has used a phone since 1996, when the MATP began. The Fourth Amendment guarantees the rights of all Americans to be secure in their persons and property, and not to be subjected to search or seizure without reasonable suspicion of having committed a crime. Starting with the distressing revelations by now-fugitive Edward Snowden last year, we now know that there are those in the government who do not consider these important protections to be worth the paper they are printed on.

For too long Americans have been willing to let their civil liberties slip away in the name of national security. Yet despite repeated requests, the NSA has been unable to supply any evidence that these telephone records have been effective in detecting or preventing terrorist attacks.

While others have attempted to challenge the NSA before, it has taken until now for a large group of citizens to band together to demand a fair hearing in court with legal representation arguing for the rights of the American people. So far, the class action suit claims to represent more than 386,000 people whose information has been collected and retained by the government without an appropriate warrant. The actual number of those affected, of course, is closer to 326 million, the number of cell phone subscriber connections in the United States.

In an era where our government is continually overstepping its bounds and exceeding its authority, it is crucial that we have principled individuals willing to stand up to big government bullies and fight to preserve the rights explicitly enshrined in the Constitution. The ultimate outcome of the case will have far reaching ramifications on how the Constitution is interpreted in the future, and even if it takes years for the court to reach a decision, the result will have an impact on our entire future as a nation.

I think the purpose for this NSA program is being missed, because it is not immediately apparent. It is not that this data will be used to spy on American's communications. Article 2 powers of the Executive include defense of the nation with no significant limitations. It is argued that the NSA program is what is necessary to defend the nation and Article 2's mandate conflicts in this case with the 4th Amendment. As a later amendment, it is arguable that the 4th supersedes and is superior to Article 2, but that just invites people to find a way to reconcile the two, leaving the true danger untouched. The real danger is that the NSA data-banks could be stolen (something that happened in the IRS scandal) and combined with other data-banks, both in governmental and the private sector. That super-data-bank is the kind of tool that could determine voter turn-out in future elections. We saw a relatively crude, mini-version of this in the 2012 Presidential election which Obama won because he turned out unpredictably large numbers of voters for him and Romney lost because unusually large numbers of predicted voters "stayed home". By filtering for known phone numbers or email addresses associated with political and cultural resources, this kind of data-bank will make it possible to identify the political and cultural leanings of most adult Americans. Political/cultural campaigns will then be able to be crafted to encourage or discourage voter turn-out based on political and social preferences with targeting by region. The political organization or alliance in possession of this super-data-bank will be able to effectively influence voter turn-out. If that is coordinated with government offices that effect American's personal lives, so that the opposition's supporters are harassed or mollified while the data-holder's supporters are helped or made angry ... democratic process will become essentially nullified. And the more it is used, the more it succeeds, the more resources for influencing elections will accumulate and victory be assured. This can be delayed but not stopped. No law or structural redesign will prevent this from happening and no counter-measure will nullify its impact so long as the federal government is involved in domestic affairs. In the original design of America the federal domestic authority was so limited that it could not be abused in a comparable fashion. If that original separation of powers was restored, any data-bank advantage of one faction could be countered by a similar effort by their opposition. But when the power of invasive federal domestic authority is added in ... whoever is in power will stay in power a Big Brother with only a token opposition.

If charges are not upheld against tyranny there will be dire consequences. This kind of lawlessness is not tolerable. Positions need to be forcefully vacated. These people do not understand that obeying our constitution will ensure future generations a civil land to live in. We do not have virtuous persons in certain positions. They must be replaced immediately. There is no time to lose. We may have let this go too long already. It's time for a state sponsored constitutional convention as well. When this happens the government will surly retaliate.

The Advisory Committee on Criminal Rules for the Judicial Conference of the United States has proposed an amendment to Rule 41. While these rules are typically procedural changes, the proposed changes in Rule 41 are actually a substantive policy change that provides federal law enforcement sweeping new powers to remotely search and seize electronic storage media.

Last year, Yahoo received a court order from the Justice Department (who obtained it from the Foreign Intelligence Surveillance Court) obligating Yahoo to scan all of its users’ emails for specific information, which has not been disclosed. We do know some of that search involved finding traces of malware. By modifying a standard spam filter, Yahoo was able to search through all of its users’ emails, not just individual accounts, in real time. Yahoo claims to have since discontinued this practice.

On Wednesday, House Oversight Committee Chairman Jason Chaffetz (R-Utah) singled out StingRay scanners, stating that the committee is set to investigate these devices and their use in government surveillance. While mired in technical language, this is an issue of importance to all Americans.

In the majority opinion for the unanimous Court in Riley v. California (2014), Chief Justice John Roberts wrote, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” This “go get a warrant” sentiment is echoed again and again in more recent cases involving cell phone privacy. By taking a closer look at how exactly a search warrant works, it becomes increasingly clear that this protection is needed now more than ever as we enter the digital age.

A federal judge in New York ruled for the first time on Tuesday that the use of a surveillance device to capture cell phone location information constitutes a warrantless search. In the case, Lambis v. United States, government officials used a stingray device to track a drug suspect. Stingrays, also known as “cell site simulators,” force cell phones in the area to transmit signals that pinpoint the user’s location through cell site location information, or CSLI data.

Following the vote in the House of Representatives on an amendment sponsored by Reps. Thomas Massie (R-Ky.) and Zoe Lofgren (D-Calif.) to end unlawful surveillance of Americans through Section 702 of the Foreign Intelligence Surveillance Act, FreedomWorks Chief Economist and Vice President of Research Wayne Brough commented:

FreedomWorks Foundation announced today that Ken Cuccinelli joined the organization in the role of general counsel. Cuccinelli brings a wealth of experience to FreedomWorks Foundation. In addition to his private legal practice, between August 2002 and January 2010, Cuccinelli served as a member of the Virginia Senate. In November 2009, he was elected to serve as the 46th Attorney General of Virginia, a post he held from January 2010 to January 2014. In June 2014, Cuccinelli was named as the president of the Senate Conservatives Fund, a role he will continue to perform while at FreedomWorks Foundation.

Back in the 1980s, everyone was walking around with their perms and mullets, Bruce Springsteen and Michael Jackson were playing sold out concerts, and people still couldn’t believe that Darth Vader was Luke’s father (spoilers). Clearly, things have changed a lot since then, yet, curiously, privacy standards regarding emails have not. While email certainly wasn’t a dominant form of communication back in the 80’s, the computer revolution that our society has undergone makes online data and information more valuable than ever. It’s time for our privacy standards, then, to reflect the new and ever-more-digitized world we live in.